Dr. Meinhard Doelle: The Future Of Environmental Law

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

“The Future Of Environmental Law.” has been republished from Dr. Meinhard Doelle’s blog, Environment Law News.

Sabbaticals are an opportunity for reflection. When I started mine last summer, I promised myself that in addition to getting caught up on some of my ongoing research projects and starting a few new ones, I would take the opportunity to reflect on the state of my chosen field. Among the issues on my list was the state of environmental law, and, more broadly, the state of efforts toward sustainability, toward human civilization living within planetary boundaries, along with a range of social goals and the realization of basic human rights for all. The 2015 Sustainable Development Goals are one articulation of what many of us are aiming to achieve.

It is not hard to conclude that we are further away from these goals now, including their environmental elements, than even a decade ago, let alone two or three. The evidence is overwhelming. Particularly at a planetary level, things are looking increasingly bleak. We have reduced the global animal population by 60% since 1970, the list of endangered and extinct species continues to grow with every passing year, nature continues to be converted to serve consumption purposes at alarming rates, plastics, other waste and pollutants are becoming more prevalent in our oceans than fish, and climate change threatens to undermine the ability of the planet to sustain natural systems and humans alike.

Increases in human population over time have made living sustainably on a planet with finite resources more challenging, but by far the most dominant causes of the sustainability crisis have been overconsumption and the wasteful use of the planet’s resources. We are fundamentally mismanaging of our relationship to nature, as evident from the land and natural resource demands associated with human consumption, and the pollution and waste associated with the way we provide the goods we consume and services we use. The depletion of natural resources and the destruction of natural systems is not an inevitable consequence of meeting the needs of a growing human population, but rather the result of poor choices. We can respect and protect natural systems while improving the quality of life of the many who still don’t have access to basic human needs such as adequate food, water, shelter, education and basic health care.

Much has been written about the failure of environmental law to solve the growing sustainability crisis. I was inspired to write this reflection in part by Professor Inara Scott’s contribution to a recent special issue on the state of environmental law. In it, she describes the way we conceive environmental law as consisting of three problematic limitations:

Environmental law addresses interactions between humans and the natural environment, and ways to limit human actions in order to protect the environment. Conversely, environmental law does not focus on human-to-human interactions or economic transactions. Matters having to do with corporate law, tax, and business are generally not included. It is only recently that energy law—including fossil fuel extraction and electric utility regulation—has been considered alongside or even linked to environmental law.

Environmental laws address narrow targets with narrow solutions. For example, the ESA creates a mechanism for protecting individual species. It was not intended to create a mechanism for considering bigger questions (i.e., how do we protect biodiversity?).

Environmental law is furthered by liberal white activists. Environmental law is not relevant to conservatives, people of color, or people living in urban settings who do not like the woods.

Some accuse elements of the environmental movement of having been co-opted by governments and business interests to accept unacceptable levels of harm in return for a seat at the table. Others point to a failure of democracy, of international law and of multilateralism. Yet others focus on corporate power applied in the pursuit of short-term greed over sustainability and prosperity. Many disciplines and individuals have contributed to a better understanding of how we got here, and how we could have done better. It is not my intention to go over this well covered ground. My modest proposition in this post is that assessing what has and has not worked in the past, while important, is no longer enough, as past experience is no longer an adequate predictor for how to solve the problems of the future. Let me explain.

As explored in a 2016 book called “Thank You for Being Late” by Thomas L Friedman, we live in a period of human history that is dominated by exponentially accelerating change. Friedman identifies three critical areas of such change, environmental harm, (computer) technology, and globalization. His basic proposition is that at least in these three areas, change has accelerated exponentially over the past few decades, and is showing no signs of slowing down. Whether one agrees with Friedman on the details, it is hard to dispute that we can expect the world to change in unimaginable ways in the next one or two decades. It is becoming increasingly difficult to predict what the world will look like even a decade from now, except that it won’t be anything like it is today. It is also increasingly difficult to predict how individuals, and even governments and businesses, will be able to influence the path of humanity.

What will happen to nation states when so much power transcends national borders? How will democracies fare in a world of alternate facts, trolling, the decline of independent media, and political leaders with dictator-like tendencies who offer simplistic solutions in an increasingly complex world? How will humans fare in a world dominated by artificial intelligence? What will happen to the climate system, to the oceans, to safe water and adequate food? My basic proposition is that in order for the natural services critical for human survival and that of other species on this planet to be secured, those concerned about the sustainability crisis, including those of us thinking about the role of law, policy, and governance systems to protect natural systems, must look beyond past experience to look for solutions.

We cannot rely on what has worked in the past, and we similarly cannot simply fix and adjust what has not worked. Rather, we need to reflect on what is ahead, and rethink how to protect the natural systems and resources we all depend on in light of new, emerging, and constantly evolving circumstances. We will have to continue to do so again and again for as long as this period of accelerating change in technology, globalization and environmental harm continues. In short, we have to become adaptable as never before.

In the remainder of this post, I will illustrate the opportunity for previously unpredictable solutions to emerge quite quickly. I will do this with a brief exploration of two emerging technological innovations that, when put together and applied effectively, have the potential to offer a powerful tool for sustainability. However, each also carries with it the risk of perpetuating the status quo. The two technologies I have in mind are artificial intelligence (AI) and blockchain. To be clear, my point here is not that they are the solution to our sustainability challenge, but to illustrate that that new thinking is needed to identify the solutions of tomorrow, that the tools of the past may not be the most effective tools to solve the sustainability challenges we face today, and that adaptability to new and emerging circumstances will be critical to finding and implementing sustainability solutions in an ever-changing world.

Blockchain technology is essentially a system of decentralized electronic records shared among users. They key contribution of blockchain is its promise to ensure that these records are secure, traceable, and auditable, and are maintained on a peer-to-peer network that can be publicly accessible. One potential application of blockchain is to track the supply chain and life cycle of goods and services. In theory, blockchain technology could ensure full transparency of all key social and environmental determinants of the sustainability of products and services offered, no matter where they are manufactured, sold, used, reused, recycled or discarded. Of course, achieving this would require a coordinated effort to ensure the right information is tracked, and adequate oversight to ensure the data collected is accurate and properly reflects the social and environmental performance of the product or service in question.

Similarly, in theory, governments and citizens, through artificial intelligence based ‘virtual assistants’ such as Amazon’s Alexa or Google Assistant, could have access to, analyze, and make purchasing and regulatory decisions based on all this blockchain data made publicly available on all products and services. This could give governments and individuals the information needed to ensure only environmentally responsibly products are purchased, that preference is given to the most environmentally and socially responsible products, and that the durability, and the operating, maintenance and repair costs of products are factored into price comparisons. Products that don’t meet a certain sustainability threshold could be banned by regulators, while others would be rejected by virtual assistants based on either built in or stated preferences for more sustainable products, or for products that are more cost effective over their life cycle. The end result could be a global race to the top, a world, where businesses who are able to produce the most sustainable products are rewarded, rather than those with the most effective marketing strategy.

There appear to be at least two key elements to making effective use of these technologies to reduce the environmental (and other) harm of products and services. One is to ensure blockchain or similar technologies are used effectively to collect accurate, reliable and comparable information about the environmental and social impacts of products and services. The second is to ensure this information is used to prevent unsustainable products and services from being made available for purchase, and to encourage consumers to purchase those that are the most socially and environmentally responsible. In short, human societies could put such technologies to effective use in the effort to become sustainable.

Of course, that is not what is happening so far, in part because those who understand the scale of the sustainability crisis tend not to be at the table to help shape the use of these technologies. They are not the ones negotiating the rules of engagement between manufacturers and Amazon’s Alexa or Google Assistant. They are not the ones deciding whether and how blockchain is used to track the life cycle of a product, or how ‘smart contracts’ are designed based on the supply chain information available through blockchain. They are not the ones designing the algorithms that tell us what to buy and what not to buy, nor are they at the table where decisions are made about the regulation or application of these technologies.

That task, by default, appears to be left to those who tend to view environmental protection as a luxury, as a fringe issue that cannot be permitted to interfere with economic growth, people who continue to live in a fantasy world of unlimited resources, and unlimited assimilative capacity of natural systems to clean up our messes. So, while we fight to protect the last bit of wilderness and the last few orcas or right whales, Amazon and Google, not represented by sustainability advocates and not regulated by sustainability oriented governments, negotiate with manufacturers around the world about the recommendations Alexa will make when you decide to buy your next gadget, kitchen appliance, car, or piece of clothing.

I am not suggesting that the environmental movement should stop fighting to protect important natural ecosystems, endangered species or stop pushing for laws that reduce pollution and waste. At the same time, we have not been able to win the battle using these tools, and there is every reason to expect that these tools will continue to become less powerful over time. More importantly, with change, there will be new opportunities, ones we are likely to miss if we continue with the mindset that environmental protection is something separate from the rest of society, separate from corporate law, from trade law, from technology and internet law.

To save the planet, nature, and human civilization, environmental protection and sustainability need to become mainstream, an integral part of everything we do, including the regulation of AI, of research, development, and the dissemination of new technology, of the regulation of corporations, the internet, AI, and international trade. We cannot afford to think of environmental law as distinct and separate from the governance of human society. Environmental law needs to be integrated and adaptable, and we need to regularly re-evaluate where the opportunities are to shift human civilization toward sustainability.

Things will continue to get more complex but hidden in the complexity are opportunities to achieve things that were unthinkable before. Emerging technologies such as blockchain and AI illustrate this, as they have the potential to put a stop to misinformation about the environmental and social impact of products and services and encourage a race to the top. They have the potential to put a stop to planned obsolescence, greenwashing, and consumer misinformation. However, they will not do so unless directed to. They will only do so if those who understand the seriousness of the sustainability crisis identify these opportunities and get involved in making them happen.

What it will take to identify and realize such opportunities are individuals in all sectors of society looking for them, not just a few committed individuals working or volunteering for ENGOs pushing for stronger environmental laws. It will take innovative thinkers in corporate boardrooms, in research labs at Google, Apple and Microsoft, at cabinet tables and in government bureaucracies to identify and realize these opportunities. It will take those who understand the significance of the sustainability crisis and are committed to working to addressing it to work for businesses and governments, not just for ENGOs. We need those committed to this cause to include all races, all cultures, and all demographics, and we need them all to look for and pursue solutions in unlikely places.

As an academic and a teacher, I am mindful that to achieve this, we need to reach all students, and we need to educate with a message of modesty that is based on the premise that the world is changing too fast for us to have and teach answers, and to instead give our students the tools for critical analysis, so that they can diagnose the problem in light of ever changing circumstances and find their own solutions, solutions that are today still inconceivable, and are designed for problems that will look very different when our students are ready to take them on.

Thomas L Friedman (2016) Thank You for Being Late (Farrar, Straus and Grioux, New York)

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University

Dr. Meinhard Doelle, Professor of Law, Schulich School of Law, Dalhousie University, has graciously agreed to join the CEGE Connection conversation and share his insights on climate change and environment law. We highly recommend a visit to Professor Doelle’s Blog: Environment Law News, which provides vital information that speaks to the complexities of environmental and energy law, climate change, GHG emissions, and the role of human rights in these areas of enquiry.